Court says 'bad time' not
discipline option for prisoners

Published: July 10, 2000 12:00AM

The Ohio Supreme Court recently ordered the release of 167 Ohio prisoners, ruling the state parole board had improperly extended their sentences.

Voting 5-2, the court said statutory provisions for "bad-time" sentence extensions violate the separation of powers guaranteed in the Ohio Constitution. Only the courts, not the parole board, which is controlled by the governor, could impose an extended sentence.

At issue was a provision that allowed the parole board to extend an inmate's state prison term by up to 90 days for criminal acts committed in prison. Enacted in 1996 as part of a sweeping revamp of Ohio's criminal sentencing law, the provisions also set forth procedures for an inmate's hearing before the parole board on the charged violations.

"Under the state and federal constitutions, only a judge can deprive you of your liberty, and then only if you've had due process and all your other constitutional rights guaranteed," said Holmes County Common Pleas Judge Thomas D. White. "When the executive branch can imprison, the fear is that you will have non-judges able to imprison and exile people."

White and Wayne County Common Pleas Judges Robert J. Brown and Mark K. Wiest agree the state legislature will now need to take a look at rewriting the language of the sentencing law, especially because the possibility for early release for good behavior was eliminated in 1996.

Despite the ending of bad time, Wiest said, prison authorities still can discipline prisoners, but prisoners serving extended sentences at the time of the Supreme Court ruling have now been released.

Brown, on the other hand, said, "I don't see any other way to effectively deal with discipline issues in prisons. Sure, you can take away privileges, but how many privileges does a prisoner have? You can take away television or exercise privileges, but where to you go after that? It's an ineffective way to deal with the problem."

The recent ruling simply limited, but did not restrict, sanctions available to punish problem inmates, said Joe Andrews, spokesman for the Ohio Department of Rehabilitation and Corrections.

Inmates who do not conform to prison rules are subject to cell confinement or can be placed in segregated areas of the prison, he said.

However, imposing bad time was a quick, easy and cost efficient way of dealing with prisoners who committed a felony while behind bars, he said. Now, more prisoners who create disciplinary problems may be prosecuted for those crimes in the county in which they are incarcerated.

However, such a procedure could throw unwarranted stress on those county prosecutors, Brown said.

"I think this creates a real problem, and the legislature has to fill the void," he said, adding, "otherwise the pressure for prison discipline will fall on county prosecutors.

"I think," Brown continued, "that the action has to be vacated, and the legislature has to act to do something meaningful to give prisons control over the prisoners."

Among those looking at finding a solution to the problem of disciplining prisoners is the Ohio sentencing commission, Andrews said.

One benefit of the demise of bad time is that it will eventually save judges a little bit of time on sentencing, Wiest said. "We won't have to advise criminal defendants about bad time any more."

Until the recent ruling, all other trial judges in Ohio, regardless of whether or not they believed the practice violated a separation of power, were bound to uphold the law and order defendants to serve bad time if so imposed by the parole board, White said.

As directed by the Supreme Court, White said, he now is ordering defendants to not serve any bad time that may be imposed by the parole board.

Writing for the majority, Justice Paul E. Pfeifer said, the practice of imposing bad time "is no less than the executive branch acting as judge, prosecutor and jury.

"Trying, convicting and sentencing inmates for crimes committed while in prison is not an exercise of executive power," but "are solely the province of the judiciary," Pfeifer said.

The Supreme Court dismissed arguments that the separation of powers doctrine "applies only when there is some interference with another governmental branch."

"The reason the legislative, executive and judicial powers are separate and balanced is to protect the people, not to protect the various branches of government," Pfeifer said.

Justices Andrew Douglas and Deborah L. Cook dissented. Cook agreed with state lawyers that "bad time" is part of the original sentence and as such "its administration by the executive branch presents no separation of powers issue." She noted that Ohio law requires the original sentencing judge to notify offenders that "as part of the sentence, the parole board may extend the state prison term for certain violations of prison rules."

The issue came before the Supreme Court in three separate cases the court consolidated for oral argument. Gary Bray and Samuel White had asked appellate courts for writs of habeas corpus ordering their release from prison. The 12th District Court of Appeals denied Bray's petition and upheld the constitutionality of the bad-time provisions. Conversely, the 11th District Court of Appeals granted White's petition and held the bad-time statute unconstitutional. Shortly after Bray appealed to the Supreme Court, Richard Haddad, in a separate proceeding, asked the justices directly for a writ of habeas corpus, asserting several violations of the state and federal Constitutions.

The concept of the parole board sentencing convicts to additional time in prison for violating post-release community control also is being challenged in Ohio.